LITTLE ROCK, Ark. — Arkansas Gov. Asa Hutchinson on Wednesday effectively approved a new law that will allow employees to opt-out of COVID-19 vaccine requirements, a move by fellow Republicans to challenge federal vaccine mandates.
Hutchinson allowed the measure to become law without his signature despite his concerns about the impact it will have on businesses in the state. The new law won’t take effect until early next year.
In Arkansas, a bill becomes law after it sits on the governor's desk for five days without any action. Governors have traditionally used that approach to express opposition to legislation without prompting a veto fight with the Legislature.
Hutchinson said the amount of time before the opt-out law takes effect gives the state more time to weigh its impact on businesses and for any court challenges to be filed.
But he also called the proposal unnecessary and counterproductive.
“The debate on these bills has been harmful to our goal of increasing vaccination rates in Arkansas," he told reporters.
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The measure requires employers to allow workers to opt out of COVID-19 vaccine requirements if they’re tested weekly or can prove they have antibodies for the virus. Health officials have said antibody tests should not be used to assess immunity against the coronavirus and that people who have recovered from COVID-19 should still get vaccinated.
The bill came primarily in response to President Joe Biden’s order that businesses with more than 100 employees require workers to get vaccinated or tested weekly.
“I think this is a good balance that affords the employer and the employee good protection," said Republican Sen. Kim Hammer, who sponsored the legislation.
Republicans in other states have also taken steps to block or undercut Biden's mandate. In neighboring Texas, Gov. Greg Abbott issued an executive order barring private companies or other entities from requiring vaccines. Calls for special legislative sessions to counter vaccine requirements have also been heard in Wyoming, Kansas and South Dakota.
Even before Biden's order, some of Arkansas’ biggest employers, such as Bentonville-based Walmart, required some or all employees to get vaccinated. Hutchinson this year signed a law banning state and local government from requiring COVID-19 vaccinations.
Business groups have criticized the opt-out measure, saying it would itself be a mandate on businesses, forcing companies to choose between violating state or federal law. Hospital officials have said the move could also jeopardize Medicare and Medicaid funding for health care facilities.
“The solution is not to place employers in a squeeze play between the federal government and the state government," said Hutchinson, who has criticized Biden’s vaccine order. “Employers need the freedom to protect their employees and their customers, and the government should not interfere with that freedom through mandates."
The new state law doesn't include any penalties or fines for businesses that don't comply. Companies that don't comply with the federal order could face fines of up to $13,600 per violation.
Randy Zook, president of the state Chamber of Commerce, said the new Arkansas law will create difficulty for businesses but that he expected they would ultimately follow the federal order.
“People are going to comply with whatever the federal rules are because the (Occupational Safety and Health Administration) penalties are horrendous and the implications or potential penalties for health care businesses are even greater," he said.
The opt-out measure was approved by the Legislature during a session intended to focus on congressional redistricting that instead was dominated by efforts to limit or prohibit vaccine requirements. A separate measure defeated by lawmakers last week would have prohibited businesses from requiring employees to say whether they had been vaccinated.
Supporters of those measures have left open the possibility of trying again when the Legislature meets later this month for a special session on tax cuts.
